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In the Matter of Terrell Hall v. Brian Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


December 13, 2012

IN THE MATTER OF TERRELL HALL, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: October 29, 2012

Before: Mercure, J.P., Rose, Malone Jr., McCarthy and Garry, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following an investigation, petitioner was charged in a misbehavior report with violating prison disciplinary rules prohibiting gang activity and making threats after he allegedly ordered a fellow gang member to threaten another inmate. At the end of a tier III disciplinary hearing, petitioner was found guilty as charged. Following an unsuccessful administrative appeal, he commenced this CPLR article 78 proceeding.

We confirm. The Hearing Officer properly credited the testimony of the inmate who was threatened and the correction sergeant who investigated the incident, as well as confidential information derived from the investigation, all of which provided substantial evidence to support the determination of guilt (see Matter of Gomez v Fischer, 89 AD3d 1341, 1341 [2011]; Matter of Hines v Goord, 29 AD3d 1204, 1205 [2006]). Petitioner had no right to access the confidential information and, contrary to his assertion, that information was appropriately assessed by the Hearing Officer and found to be credible (see Matter of Williams v Fischer, 18 NY3d 888, 890 [2012]; Matter of Brooks v Fischer, 92 AD3d 987, 988 [2012]). Petitioner's remaining claims, to the extent they are properly before us, have been considered and rejected.

Mercure, J.P., Rose, Malone Jr., McCarthy and Garry, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

© 1992-2012 VersusLaw Inc.



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